Untitled Texas Attorney General Opinion: KP-0475 ( 2024 )

October 2, 2024
The Honorable Matthew A. Mills
Hood County Attorney
1200 West Pearl Street
Granbury, Texas 76048
Opinion No. KP-0475
Re: Whether the Texas Open Meetings Act, Government Code section 551.071,
authorizes discussion about hiring a law firm, and whether boilerplate language contained
on a meeting notice or agenda is sufficient notice of an executive session (RQ-0537-KP)
Dear Mr. Mills:
Your request pertains to the sufficiency of notice of an executive session as well as the use
of the attorney-consultation exception in the Texas Open Meetings Act (the “Act”). 1 You tell us
that the Hood County Hospital District (the “District”) is a special district subject to the Act’s
requirements. Request Letter at 1; see also TEX. GOV’T CODE § 551.001(3)(H) (defining a
“[g]overnmental body” to include “the governing board of a special district created by law”); TEX.
SPEC. DIST. CODE §§ 1042.002 (setting out the authority for creating the District), 1042.051
(setting forth the composition of the District’s board). You provide information about a particular
meeting held by the District’s board and include various documents related to that meeting. See
generally Request Letter at 1–13.
You provide us with a copy of the relevant notice, which contains boilerplate language
stating that the “District reserves the right to adjourn into Executive session at any time during the
course of this meeting to discuss any of the matters listed” and an enumeration of various potential
statutory exceptions to the Act’s openness requirement. Id. at 4. You also include a letter from the
county judge stating that a particular attorney would attend the meeting and the board would “go
into Executive Session to discuss the Voter-Approval Tax Rate Election (Implementation of M&O
Tax Rate) and the possibility of his firm representing” the District. Id. at 6. You inform us that you
“notified the [county] judge that the proposed item was not on the agenda, and that the District
should not take up that item since it wasn’t posted.” Id. at 1. You state that the county judge
conferred with the board’s president, who in turn stated that the boilerplate “language at the bottom
of every District agenda allows the District to convene into an executive session without additional
1
See Letter from Honorable Matthew A. Mills, Hood Cnty. Att’y, to Honorable Ken Paxton, Tex. Att’y Gen.
at 1–2 (Apr. 25, 2024), https://texasattorneygeneral.gov/sites/default/files/request-files/request/2024/RQ0537KP.pdf
(“Request Letter”).
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notice.” Id. at 2. You explain that the board “did in fact convene into executive session” with a
quorum present “to discuss hiring a law firm.” Id. at 1–2.
Given this information, you pose two questions. You ask whether “the boilerplate language
at the bottom of each agenda allow[s] the District to convene an executive session during any
meeting without additional notice.” Id. at 2. You also ask whether it is “proper for a governmental
body to convene into executive session to discuss a tax rate election and hiring a law firm to
facilitate this process.” Id. We “cannot determine in a legal opinion whether . . . any person has
actually violated the Open Meetings Act” because doing so “requires the investigation and
resolution of fact questions.” Tex. Att’y Gen. Op. No. JC-0057 (1999) at 1. However, we can
generally advise you regarding a court’s likely application of the Act. As notice precedes any
meeting, we begin by addressing your question related to notice.
Without more, boilerplate language in a notice that a closed meeting may commence
pursuant to certain provisions of the Act is insufficient to alert the general public of
the subject to be considered at the meeting.
The Act’s purpose “is to enable public access to, and to increase public knowledge of,
government decision making.” Foreman v. Whitty, 392 S.W.3d 265, 271 (Tex. App.—San Antonio
2012, no pet.) (citing City of San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 765 (Tex.
1991) (orig. proceeding)). To that end, Government Code section 551.041 requires “written notice
of the date, hour, place, and subject of each meeting held by the governmental body.” TEX. GOV’T
CODE § 551.041. The notice “must be sufficiently specific to alert the general public to the topics
to be considered at the upcoming meeting.” City of Farmers Branch v. Ramos, 235 S.W.3d 462,
467 (Tex. App.—Dallas 2007, no pet.).
The Act’s notice requirements apply not only to open meetings, but to executive sessions
or closed meetings as well. 2 Weatherford v. City of San Marcos, 157 S.W.3d 473, 485–86 (Tex.
App.—Austin 2004, pet. denied); see also TEX. GOV’T CODE § 551.101(1) (authorizing a closed
meeting if, among other requirements, “a quorum of the governmental body first convenes in an
open meeting for which notice has been given” (emphasis added)). Granted, nothing in the Act
requires the notice “to state the section number of the provision authorizing the closed meeting.”
Tex. Att’y Gen. Op. No. GA-0511 (2007) at 4 (relying on Rettberg v. Tex. Dep’t of Health, 873
S.W.2d 408 (Tex. App.—Austin 1994, no writ), and Weatherford, 157 S.W.3d at 478). Nor does
the Act “require the notice to state that a particular subject will be discussed in executive session
rather than in open meeting.” 3 Tex. Att’y Gen. Op. No. JC-0057 (1999) at 5. As such, a notice may
2
The terms “executive session” and “closed meeting” are often used interchangeably. See Finlan v. City of
Dallas, 888 F. Supp. 779, 782 (N.D. Tex. 1995) (noting that an “executive session” is now “referred to as a ‘closed
meeting’ in the revised TOMA”); TEX. GOV’T CODE § 551.001(1) (defining “[c]losed meeting” as “a meeting to
which the public does not have access”).
3
This office has cautioned that “[w]hen the notices posted for a governmental body’s meetings consistently
distinguish between subjects for public deliberation and subjects for executive session deliberation, an abrupt
departure from this practice may deceive the public and thereby render the notice inadequate.” Tex. Att’y Gen. Op.
No. JC-0057 (1999) at 5.
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include boilerplate language notifying the public that some portion of the meeting may be held as
a closed meeting and identifying the potentially applicable exceptions.
However, providing notice that an executive session may commence does not relieve the
governmental body of its duty to include in its notice all subjects that will be addressed at the
meeting. See TEX. GOV’T CODE § 551.041 (requiring “written notice of the . . . subject of each
meeting”); see also Fourth Court of Appeals, 820 S.W.2d at 764–65 (summarizing the Texas
Supreme Court’s treatment of notice regarding a meeting’s subjects). In determining the
sufficiency of a notice, courts compare “the content of the notice given and the action taken at the
meeting.” Odessa Tex. Sheriff’s Posse, Inc. v. Ector Cnty., 215 S.W.3d 458, 473 (Tex. App.—
Eastland 2006, pet. denied). Indeed, the requirement that “each closed session and the applicable
exception be announced in an open meeting for which notice has been given” helps facilitate this
comparison. Cox Enters., Inc. v. Bd. of Trs., 706 S.W.2d 956, 958 (Tex. 1986) (stating the
requirement works in tandem with requiring “advance notice of subject matter” so that “it can be
determined whether a governmental body is correctly applying the exceptions to [the Act’s]
general requirement of open meetings”). Ultimately, courts consider whether the provided notice
is “sufficient to ensure that a reader was given adequate notice of the proposed governmental
action.” Fourth Court of Appeals, 820 S.W.2d at 765.
Here, the notice attached to your request contains no agenda item about or other reference
to a tax rate election or retaining a law firm in relation to that matter. See Request Letter at 4.
Indeed, even the boilerplate language itself acknowledges that an executive session may only
commence “to discuss any of the matters listed” on the notice. Id. A notice is insufficient where it
is “plainly removed from [the governmental body’s] actions at the meeting” or “devoid of any
language that could alert the public” of the actions that might take place. Mares v. Tex. Webb Cnty.,
No. 5:18-CV-121, 2020 WL 619902, at *4 (S.D. Tex. Feb. 10, 2020). Accordingly, a court would
likely conclude that boilerplate language referencing the possibility of a closed session pursuant
to certain provisions of the Act is insufficient by itself to alert the general public of the topic to be
considered in a closed meeting.
Section 551.071 authorizes a governmental body to consult with an attorney in a
closed meeting about retaining the attorney to perform professional legal services.
We next address whether the Act’s attorney-consultation exception in section 551.071
authorizes a closed meeting with an attorney to discuss retaining the attorney’s law firm to provide
services related to a tax rate election. 4 See Request Letter at 2. You emphasize that it “may be
proper in some circumstances for a governmental body to conduct a private consultation with its
attorney.” Id. But you question whether the exception authorizes “a discussion to hire a law firm.”
Id. (emphasis added).
The Act requires that “[m]eetings of governmental bodies generally must be open to the
public.” Tex. State Bd. Of Pub. Acct. v. Bass, 366 S.W.3d 751, 759 (Tex. App.—Austin 2012, no
4
You do not ask about and we do not opine on provisions in the Tax Code related to the adoption of tax rates.
See, e.g., TEX. TAX CODE § 26.05(d) (requiring a governmental body to hold a public hearing when considering the
adoption of certain tax rates).
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pet.) (citing TEX. GOV’T CODE § 551.002). However, “there are certain narrow exceptions to that
rule, one of which is provided by section 551.071.” Id. Section 551.071 provides that
[a] governmental body may not conduct a private consultation with
its attorney except:
(1) when the governmental body seeks the advice of its
attorney about:
(A) pending or contemplated litigation; or
(B) a settlement offer; or
(2) on a matter in which the duty of the attorney to the
governmental body under the Texas Disciplinary Rules of
Professional Conduct of the State Bar of Texas clearly
conflicts with this chapter.
TEX. GOV’T CODE § 551.071. The provision thus prohibits a governmental body from privately
consulting with its attorney except in certain circumstances. 5 Tex. Att’y Gen. Op. No. JC-0506
(2002) at 2.
Relevant here, subsection 551.071(2) adopts by reference the Texas Disciplinary Rules of
Professional Conduct, which itself references the attorney-client privilege set forth in Rule 503 of
the Texas Rules of Evidence (“Rule 503”). See Markowski v. City of Marlin, 940 S.W.2d 720,
726–27 (Tex. App.—Waco 1997, writ denied) (discussing the application of Rule 503 to
discussions in a closed meeting held under section 551.071); TEX. DISCIPLINARY RULES PROF’L
CONDUCT R. 1.05(a), reprinted in TEX. GOV’T CODE, tit. 2, subtit. G, app. A (defining
“[c]onfidential information” to include “the information of a client protected by the lawyer-client
privilege of Rule 503 of the Texas Rules of Evidence”). Accordingly, courts recognize that
subsection 551.071(2) incorporates attorney-client privilege as set forth in Rule 503. See, e.g., In
re City of Galveston, No. 14-14-01005-CV, 2015 WL 971314, at *4 (Tex. App.—Houston [14th
Dist.] Mar. 3, 2015, no pet.) (per curiam) (mem. op.); Killam Ranch, 376 S.W.3d at 157; Bass, 366
S.W.3d at 759; Olympic Waste Servs. v. City of Grand Saline, 204 S.W.3d 496, 502 (Tex. App.—
Tyler 2006, no pet.). In other words, subsection 551.071(2) applies if a governmental body’s
consultation with the attorney would be privileged under Rule 503. 6 We therefore examine Rule
503.
Rule 503 provides that a “client” generally “has a privilege to refuse to disclose and to
prevent any other person from disclosing confidential communications made to facilitate the
This exception “is an affirmative defense on which the governmental entity bears the burden of proof.”
5
Killam Ranch Props., Ltd. v. Webb Cnty., 376 S.W.3d 146, 157 (Tex. App.—San Antonio 2012, pet. denied).
6
“The privilege applies with special force in the governmental context because public officials are duty-bound
to understand and respect constitutional, judicial and statutory limitations on their authority; thus, their access to
candid legal advice directly and significantly serves the public interest.” Univ. of Tex. Sys. v. Franklin Ctr. for Gov’t
& Pub. Integrity, 675 S.W.3d 273, 279 (Tex. 2023) (quotation marks omitted).
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rendition of professional legal services to the client.” TEX. R. EVID. 503(b)(1). Rule 503 defines
the term “client” as follows:
(a) Definitions. In this rule:
(1) A “client” is a person, public officer, or corporation,
association, or other organization or entity—whether public
or private—that:
(A) is rendered professional legal services by a
lawyer; or
(B) consults a lawyer with a view to obtaining
professional legal services from the lawyer.
Id. 503(a)(1) (emphasis added). Rule 503 defines “confidential” communications as those that a
client does not intend to disclose to third persons except where “disclosure is made to further the
rendition of professional legal services to the client” or the disclosure to a third person is
“reasonably necessary to transmit the communication.” Id. 503(a)(5).
The fundamental purpose of attorney-client privilege is to facilitate “unrestrained
communication and contact between an attorney and client in all matters in which the attorney’s
professional advice or services are sought, without fear that these confidential communications
will be disclosed by the attorney, voluntarily or involuntarily, in any proceeding.” Markowski, 940
S.W.2d at 726 (citation omitted). “The legislature obviously had this purpose in mind when it
enacted section 551.071 . . . .” Id. Relevant to your inquiry, the Fifth Circuit has recognized that
protecting communications that occur before an attorney has been retained advances this purpose:
Of critical importance to a meaningful pre-representation interview
is the availability of the attorney-client privilege from the initial
salutation and greeting on. The existence of the privilege is an
essential ingredient to a full and free exchange of information
needed by the attorney for an intelligent assessment of the
representation invitation.
In re Auclair, 961 F.2d 65, 69–70 (5th Cir. 1992).
Under Rule 503, “the protection of the attorney-client privilege is available equally to those
persons who [have] hired the lawyer as well as those still seeking to do so.” Mixon v. State, 224
S.W.3d 206, 209 (Tex. Crim. App. 2007). The privilege thus applies where a client consults with
an attorney “with a view to obtaining professional legal services.” In re Z.N.H., 280 S.W.3d 481,
485 (Tex. App.—Eastland 2009, no pet.). Indeed, the privilege applies even when the initial
consultation does not result in the attorney being retained. Mixon, 224 S.W.3d at 208. Accordingly,
a court would likely conclude that subsection 551.071(2) authorizes a governmental body to
The Honorable Matthew A. Mills - Page 6
conduct a closed meeting for the purpose of consulting with an attorney about potentially retaining
the attorney’s law firm to perform professional legal services. 7
7
We caution that subsection 551.071(2) is limited to discussing the rendition of professional legal services to
the governmental body and may not extend to other matters. See, e.g., Bass, 366 S.W.3d at 759 (“A governmental
body may not engage in a general discussion of policy unrelated to legal matters in a closed session merely because
its counsel is present[.]”); Olympic, 204 S.W.3d at 503 (holding that consultations about the “legal ramifications” of
terminating a contract were appropriate but discussing the “resulting contractual options” exceeded the scope of the
authorization).
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S U M M A R Y
Government Code section 551.041 requires notice of each
subject to be addressed at a meeting and applies to both open and
closed meetings held under the Open Meetings Act. Boilerplate
language in a notice that a closed meeting may commence pursuant
to certain provisions of the Act is insufficient by itself to alert the
general public of the subject to be considered at the closed meeting.
Government Code section 551.071 contains the attorney-
consultation exception to the Open Meetings Act. Under subsection
551.071(2), a governmental body may conduct a closed meeting for
the purpose of consulting an attorney about potentially retaining the
attorney’s law firm to perform professional legal services.
Very truly yours,
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney General
LESLEY FRENCH
Chief of Staff
D. FORREST BRUMBAUGH
Deputy Attorney General for Legal Counsel
AUSTIN KINGHORN
Chair, Opinion Committee
J. AARON BARNES
Assistant Attorney General, Opinion Committee